Interim Decision #2832 

MATTER OF SEDA 

In Deportation Proceedings 

A-20879583 

Decided by Board October 10, 1980 

(1) Section 101(0(3) of the Immigration and Nationality Act, 8 U.S.C. 1101(0(3), 

precludes a person from establishing good moral character if he has been convicted of 

or admits the commission of a crime involving moral turpitude during the period for 

which good moral character is required to be established. 

(2) The crime of forgery, to which the respondent pleaded guilty, is a crime involving 

moral turpitude. 

(3) A conviction exists for immigration purposes when there is a judicial finding of guilt, 

the court takes action which removes the case from a pending status, and the action of 

the court is considered a conviction by the state for at least some purposes. 

(4) The Georgia Act for Probation of Pirst Offenders provides that upon a verdict or a 

plea of guilty or nolo contendere, but before an adjudication of guilt, the court may, 

without entering, a judgment of guilt, defer proceedings, place the defendant on 

probation, and subsequently discharge the defendant without court adjudication of 

guilt so that he is not considered to have a criminal conviction. Ga. CodeAnn. sections 

27-2727, 27-2728. 

(5) A person sentenced under a first offender statute which provides for withholding of 

adjudication of guilt by the court and discharge without conviction upon successful 

completion of probation is not considered to be convicted for immigration purposes. 

Matter of Kaneda, 16 LEN Dec. 677 (BIA 1979); Matter of Haddad., 16 I&N Dec. 253 

(BIA 1977); and Matter of Werk,16 I&N Dec. 234 (BIA 1977), modified. 

(6) Where a plea of guilty results in something less, than a conviction, the plea, without 

more, is not tantamount to an admission of commission of crime for immigration 

purposes, so the respondent, who was not convicted, is not statutorily ineligible for 

voluntary departure as a person precluded from establishing good moral character. 

(7) Notwithstanding the absence of a conviction by reason of the Georgia Act for 

Probation of First Offenders, a plea of guilty to the crime of forgery is a significant 

adverse factor in determining whether a favorable exercise of discretion is warranted. 

(8) The respondent, who has no family ties or other equities to offset the adverse factors 

of his guilty plea to the crime of forgery and the withdrawal of church sponsorship on 

the basis of his objectionable behavior, is denied voluntary departure as a matter of 

discretion. 

CHARGES: 

Order. Act of 1952—Sec. 241(a)(9) [8 U.S.C. 1251(a)(9)]—Nonimmigrant student—failed to comply with conditions of status 

550 
Interim Decision #2832 .

Lodged: Act of 1952—Sec. 241(a)(2){8 U.S.C. 1251(a)(2)]—Nonimmigrant student— 

remained longer than permitted 

ON BEHALF OF RESPONDENT: Dale M. Schwartz, Esquire 

1400 Candler Building 

Atlanta, Georgia 30303 

BY: Milhollan, Chairman; Maniatis, and Farb, Board Members. Concurring Opinion: 

Maguire, Board Member. Concurring in Part, Dissenting in Part Appleman. Board 

Member 

In a decision dated February 15, 1979, the immigration judge found 

the respondent deportable on his own admission on the lodged charge, 

under section 241(a)(2) of the Immigration and Nationality Act, 8 

U.S.C. 1251(a)(2), as a nonimmigrant who remained longer than 

authorized. He further denied the respondent's request for voluntary 

departure. The respondent has appealed from the immigration judge's 

denial of voluntary departure_ The appeal will be dismissed. 

The respondent is a 34-year-old native and citizen of Kenya who 

entered the United States on September 12, 1973, as a nonimmigrant 

student. His status was subsequently changed to that of an exchange 

visitor, and his stay was extended to March 22, 1978. At deportation 

proceedings, he conceded deportability as an overstay, but denied that 

he had failed to maintain his student status as charged in the Order to 

Show Cause. The respondent's wife and four children, all natives and 

citizens of Kenya, reside in the United States with him. 

At deportation proceedings, the trial attorney introduced evidence 

that the respondent had pleaded guilty on January 27, 1978, to the 

offense of forgery in the first degree in the Superior Court of the State 

of Georgia for Fulton County. The record indicates that the respondent 

was placed on probation for 5 years under the provisions of the Georgia 

Act for Probation of First Offenders and was ordered to make restitution in the amount of $3,585.00. The immigration judge determined on 

the basis of that court order that the respondent was statutorily 

ineligible for voluntary departure under section 101(f)(3) of the Act, 8 

U.S.C. 1101(f)(3), as a person who had been convicted of a crime 

involving moral turpitude. 

On appeal, the respondent argues that he has not been "convicted" of 

the forgery offense because under the Georgia statute relating to first 

offenders under which he was sentenced, proceedings are deferred 

while the defendant is on probation, and upon fulfillment of probation, 

the defendant is discharged without court adjudication of guilt. Ga. 

Code Ann. sections 27-2727 and 27-2728. He further cites as applicable 

our decisions recognizing that first offender statutes may eliminate the 

effect of a conviction for immigration purposes. See Matter of Kaneda, 
Interim Decision #2832 

16 I&N Dec. 677 (BIA 1979); Matter of Haddad,16 I&N Dec. 253 (BIA 

1977); Matter of Werk, 16 I&N Dec. 234 (BIA 1977). 

In order to be eligible for voluntary departure, an alien must establish, inter cilia, that he is, and has been, a person of good moral 

character for at least 5 years immediately preceding his application 

for such relief. Section 244(e) of the Act, 8 U.S.C. 1254(e). Under section 

101(f)(3) of the Act, a person is precluded from establishing good moral 

character if he has been convicted of or admits the commission of a 

crime involving moral turpitude during the statutory period. 

The record indicates that the respondent pleaded guilty to forgery, 

which is a crime involving moral turpitude. See Matter of Jimenez, 14 

I&N Dec. 442 (BIA 1973); Matter of A—, 5 I&N Dec. 52 (BIA. 1953). We, 

therefore, must determine whether for immigration purposes the respondent can be considered to have been "convicted" of that offense 

under Georgia law or to have admitted commission of the crime. 

This Board has repeatedly held that a conviction exists for immigration purposes when the following elements are present: (1) there has 

been a judicial finding of guilt, (2) the court takes action which 

removes the case from the category of those which are (actually or in 

theory) pending for consideration by the court—the court orders the 

defendant fined or incarcerated, or the court suspends sentence, (3) the 

action of the court is considered a conviction by the state for at least 

some purpose. Matter of Robinson,16 I&N Dec. 762 (BIA 1979); Matter 

of Varagianis, 16 I&N Dec. 48 (BIA 1976); Matter of Pikkarainen, 10 

I&N Dec. 401 (BIA. 1963); Matter of L—R—, 8 I&N Dec. 269 (BIA 1959). 

The pertinent sections of the Georgia statute relating to first 

offenders provide as follows: 

Probation for first offenders; when applicable; violation of terms of probation— 

Upon a verdict or plea of guilty or a plea of nolo contendere by [sic] before an 

adjudication of guilt, the court may, in the case of a defendant who has not been 

previously convicted of a felony, without entering a judgment of guilt and with the 

consent of the defendant, defer further proceeding and place the defendant on 

probation as provided by the Statewide Probation Act [sections 27-2702 through 27- 

2726.1]. Upon violation of the terms of probation, or upon a conviction for another 

crime, the court may enter an adjudication of guilt and proceed as otherwise 

provided. No person may avail himself of the provisions of this law [sections 27-2727 

through 27-2732] on more than one occasion. 

Same; discharged probationer not to be considered to have criminal conviction; 

records of probation— 

Upon fulfillment of the terms of probation, or upon release by the court prior to 

the termination of the period thereof, the defendant shall be discharged without 

court adjudication of guilt. Such discharge shall completely exonerate the defendant 

of any criminal purpose;shall not affect any civil right nr lihertics, and he shall not 

be considered to have a criminal conviction. Should a person be placed under 

probation under this law [sections 27-2727 through 27-2732], a record of the same 

shall be forwarded to the office of the State Probation System and to the Identifies552 
Interim Decision #2832 

tion Division of the Federal Bureau of Investigation. Ga. Code Ann. sections 27-2727, 

27-2728 (emphasis added). 

In interpreting these provisions, the Supreme Court of Georgia has 

stated that during the probationary period imposed, the defendant's 

trial has, in effect, been suspended, and if he successfully completes the 

probationary sentence without violations, no formal act of conviction 

is rendered. See Favors v. State, 214 S.E2d 645 (Ga. 1975); State v. 

Wiley, 210 S.E.2d 790 (Ga. 1974). Thus, the clear language of the statute 

and the judicial interpretation thereof indicate that a defendant 

sentenced under the Georgia Act for Probation of First Offenders is 

not convicted unless and until he violates the terms of his probation or 

is convicted of another crime, at which time an adjudication of guilt 

may be entered by the court. Therefore, under the standards previously set forth, the probationary sentence imposed on a defendant 

under that Act should not be considered to be a "conviction" for 

immigration purposes. See Pin() v. Landon, 349 U.S. 901 (1955); cf. 

Matter of Winter, 12 I&N Dec. 638 (BIA 1967, 1968); Matter of G—, 9 

I&N Dec. 159 (BIA 1960; A.G. 1961). 

In previous decisions, this Board has treated other first offender 

statutes, the language of which is nearly identical to the Georgia Act, 

as expungement statutes. See Matter of Kaneda, supra; Matter of 

Haddad, supra; Matter of Werk, supra. In Werk we accepted the 

Service policy that the federal first offender statute, 21 U.S.C. 

844(b)(1), which dealt only with narcotics convictions, was comparable 

to the Federal Youth Corrections Act, 18 U.S.C. 5005, et seq. That Act, 

as well as its state counterparts, had been held to expunge narcotics 

convictions of youth offendersc for deportation purposes. See Matter of 

Andrade, 14 I&N Dec. 651 (BIA 1974); Matter of ingis, 14 I&N Dec. 621 

(BIA 1974). We, therefore, held that convictions under the federal first 

offender statute could be considered expunged for deportation 

purposes. 

Our subsequent inquiry in Haddad and Kaneda, which dealt with 

state first offender statutes, was limited to determining whether the 

statute involved was the state counterpart of the federal statute. Thus, 

the threshold question of whether there was a conviction in existence 

which could be expunged was never addressed. Although in Werk we 

quoted a Service memorandum stating that the "legislative history 

indicates that discharge and dismissal under [21 U.S.C. 844(b)(1)1 shall 

not be deemed conviction of a crime," we have continued to refer to the 

federal first offender statute and its state counterparts as having the 

effect of expunging a conviction. 

We now hold that a person sentenced under a first offender statute, 

which provides for withholding of adjudication of guilt by the court 

and discharge without conviction upon successful completion of proba- 
Interim Decision #2832 

tion, shall not be considered to be "convicted" for immigration purposes. Our decisions in Matter of Werk, supra, Matter of Haddad, 

supra, and Matter of Kaneda, supra, are modified to comport with this 

view. 

We must next determine whether the respondent's plea of guilty 

constitutes an admission of commission of the crime, which also would 

render him ineligible for voluntary departure. Ordinarily, a plea of 

guilty in a criminal prosecution is regarded as an "admission" within 

the meaning of the immigration laws. Blumen v. Hoff, 78 F.2d 833 (9 

Cir.), cert. denied, 296 U.S. 644 (1935); Matter of K—, 9 I&N Dec. 143 

(S.I.O. 1959, ETA 1959, A.G. 1961); Matter of P—, 4 I&N Dec. 373 (BIA 

1951). However, where a plea of guilty results in something less than a 

conviction, it has been held that the plea, without more, is not 

tantamount to an admission of commission of the crime for immigration purposes. Matter of Winter, supra. Since we have found that the 

respondent's guilty plea does not amount to, a conviction, it also cannot 

be considered to be an admission of commission of the crime. Accordingly, we find that the respondent is not statutorily ineligible for 

voluntary departure as a person precluded by section 101(1)(3) from 

establishing good moral character. 

A grant of voluntary departure is a matter of discretion, however, 

and an alien must not only establish that he is statutorily eligible, but 

also that he is worthy of discretionary relief. See Matter of Turcotte,12 

I&N Dec. 206 (BIA 1967); Matter of Mariann 11 I&N Dec. 210 (BIA 

1965). Consideration of an application for voluntary departure involves 

many factors, including the alien's prior immigration history, the 

nature of his entry, and his violations of the immigration and other 

laws, as well as the length of residence in this country, close family 

ties, and humanitarian needs. See Matter of Gamboa, 14 I&N Dec. 244 

(BIA 1972). 

In the instant case, the respondent pleaded guilty to the crime of 

forgery. Although we have determined that such a plea does not render 

him statutorily ineligible for voluntary departure, we believe it is a 

significant adverse factor to be considered in deciding whether a 

favorable exercise of discretion is warranted. CI Matter of Tureotte, 

supra; Matter of Pitzoff, 10 I&N Dec. 35 (BIA 1962). 

In addition, the church sponsor who took the respondent into his 

home upon his arrival in the United States testified at deportation 

proceedings that he asked the respondent to leave his house and that 

the church withdrew its sponsorship of the respondent due to his 

behavior. Although the respondent attempted to rebut the accusations 

made against him, we believe that the witness's testimony and the fact 

that church sponsorship was withdrawn must be viewed as negative 

factors in our determination on discretion. 

554 
Interim Decision #2832 

The respondent's wife and children are citizens of Kenya whose 

status in this country is dependent on that of the respondent. Therefore, he cannot be considered to have close family ties in the United 

States. No other equities have been presented by the respondent to 

offset the adverse factors in this case. Accordingly, we conclude that 

voluntary departure should be denied as a matter of discretion. The 

appeal will be dismissed. 

ORDERS The appeal is dismissed. 

DISSENTING IN PART AND CONCURRING IN PART: 

Irving A. Appleman, 

Board Member 

I concur in that portion of the decision which finds there was no 

conviction in view of the Georgia first offender statute under which the 

respondent was sentenced, and in the denial of voluntary departure as 

a matter of discretion. 

However, I am disturbed by the remainder of the majority opinion. 

The purpose of the comments regarding Matter of Werk, 16 I&N Dec. 

234 (BIA 1977), Matter of Haddad, 16 I&N Dec. 253 (BIA 1977), However, I am disturbed by the remainder of the majority opinion. The 

purpose of the comments regarding Matter of Werk, 16 I&N Dec. 234 

(BIA 1977), Matter of Haddad, 16 I&N Dec. 253 (BIA 1977), and Matter 

of Kaneda,16 I&N Dec. 6'77 (BIA 1979), is not clear. Those holdings are 

not necessarily germane to an inquiry into the language and meaning 

of the Georgia statute we are concerned with here, and if the intent is 

to impeach them, it is done in a singularly imprecise and unscholarly 

way. Thus the majority notes: "In previous decisions this Board has 

treated other first offender statutes, the language of which is nearly 

identical (emphasis supplied) to the Georgia Act, as expungement 

statutes." No analysis or comparison is made of the statutes in question, but the decisions in Matter of Werk, supra, Matter of Haddad, 

supra, and Matter of Kaneda, supra, are "modified" to comport with 

the present decision even though it is not shown what, or why, "modification" is needed. 

The decision in Matter of Werk was premised on a Wisconsin first 

offender statute which, according to representations made by the 

Immigration and Naturalization Service, was a counterpart to 21 

U.S.C. 844(b)(1), which, in turn, was the equivalent, in the narcotics 

field, of the Federal Youth Corrections Act, 18 U.S.C. 5010, et seq. Since 

both 21 U.S.C. 844(b)(1) and 18 U.S.C. 5010 are statutes which suspend 

the imposition or execution of sentence after a finding of guilt, it is 

clear that the Service motion to terminate in Werk rested on an 

assumption there was a conviction in that case. Whether the Service 
Interim Decision #2832 

would agree that termination was warranted in Werk on an assumption there was no conviction is not known, nor has the Service been 

given a chance to brief or argue the point. Nor is it clear whether, in 

casting doubt on the interpretations of state first offender statutes 

such as that in Werk, the majority also questions the reasoning in 

decisions involving the application of 21 U.S.C. 844(b)(1} to narcotics 

convictions, or the Federal Youth Corrections Act to other "convictions" (see e.g., Matter of Zingis, 14 I&N Dec. 621 (BIA 1974)). 

In point of fact there is a very significant difference between (a) the 

Georgia statute, and (b) the Wisconsin statute in Work, the Michigan 

statute in Haddad, and the Virginia statute in Kaneda. That difference 

has been completely overlooked or ignored by the majority, and makes 

any "modification" very questionable. 

In Matter of 0—, 7 I&N Dec. 539 (BIA 1957), in defining a "conviction" for deportation purposes, this Board attempted to explain the 

difference between a statute suspending the imposition or execution of 

sentence, and one which specifically postponed any consideration of a 

case. Only in the latter instance does, the criminal proceeding fail to 

achieve the finality necessary to support an order of deportation. Id. at 

543. All of the statutes involved (i.e., in Werk, Hculdad, and Kaneda, as 

well as here), speak of the non-entry of a judgment of guilt_ Only nne, 

however, the Georgia statute, specifically -stipulates deferment of 

proceedings "before an adjudication of guilt . ." Ga. Code Ann. section 

27-2'727 (emphasis supplied). The entry of formal judgment of guilt in a 

criminal proceeding is a quite different matter from an adjudication of 

guilt. See generally Matter of 0—, id. at 542. Hence, even though under 

the Georgia statute the "prior finding of guilt may be pleaded and 

proven as if an adjudication of guilt had been entered ..." in the event 

of a subsequent prosecution for another offense (Ga. Code Ann. section 

27-2730), and the respondent is still on "probation" (Ex. 5), I nevertheless agree that there was no conviction here, but rather a complete 

deferment of the criminal proceeding without any finding of guilt. Cf. 

de Lara v. U.S., 439.F.24 1316 (5 Cir. 1971); Pino v. Landon, 349 U.S. 901 

(1955). 

On the other hand, a conviction acquires sufficient finality to sustain 

deportability when no further consideration is required as to innocence or guilt. Matter of Johnson, 11 I&N Dec. 401 (BIA 1965). This 

was the case in Matter of Haddad, Matter of Werk and Matter of 

Kaneda, supra. Under the statutes in those cases the defendants were 

clearly adjudged guilty, although no formal entry was made in the 

criminal record, or, if made, it was subsequently eradicated. All that 

was involved was a suspension of imposition of judgment and sentence, 

with subsequent expungement, and this is a conviction for deportation 

purposes. Matter of Cruzculo,14I&N Dec. 513 (BIA 1973). Significantly, 

MR 
Interim Decision #2832 

if there were no "convictions" in the Werk-type cases, as the majority 

now appears to find, notwithstanding adjudications of guilt, then 

deportation for hard narcotics "convictions," after expungement 

under statutes such as section 1772 of the Welfare and Institutions 

Code of California, arguably is now open to challenge.' 

I see no reason for disturbing the earlier decisions at this time. They 

appear to be correct and, in any event, their consideration is not 

necessary to the determination in this case. If the majority thought 

them relevant, one would have hoped for, and expected, a more satisfactory and lucid justification for "modification" than that the statutes 

involved are "nearly identical." Since the relief is being denied as a 

matter of discretion in any event, it is hard to understand the need for 

a rash venture into this particular legal thicket. Bagam,asbad v. INS, 

429 U.S. 24 (1976). I expressly dissent from the attack on those 

precedents. 

CONCURRING OP Turns Mary P_ Maguire, Board Member 

Contrary to the suggestion in the dissent, the intent of the majority 

opinion is not to impeach, but to clarify the Board's former decisions 

which were decided on a theory which the majority now finds to be 

incorrect. Therefore, in order to be legally precise and consistent in our 

rulings, the majority believes that they should be amended to reflect 

the Board's current opinion. In my view, it would indeed be unscholarly 

to leave unrevised a decision which the majority believed to be founded 

on legally erroneous conclusions. 

The dissent correctly points out that the Board's decision in Matter 

of Werk, 16 I&N Dee. 234 (B1A 1977), was premised on a Service memo 

which referred to the federal first offender statute, 21 U.S.C. 844, as the 

"equivalent" in the narcotics field of the Federal Youth Corrections 

Act. However, the dissent states further that these statutes are similar in that both suspend tife imposition or execution of sentencing 

after a finding of guilt. Examination of the statutes reveals the fallacy 

of that statement 

Under the Federal Youth Corrections Act, the court may suspend 

the imposition or execution of sentence of a youth offender and place 

him on probation. It may then discharge him from probation, which 

' Attorney General, of course, and the Ninth Circuit have consistently upheld deportsbility in such cases despite expungement. Matter c(A—F—, 8 I&N Dec. 429 (A.G. 1959), 

(led, Arrellano-Flores v. Hoy, 262 F.2d 667, cert. denied, 362 U.S. 721(1960); cf. Matter of 

Andrade,14 IAN Dec. 651 (CIA 1974); see also Matter of G—, 9 Itr,N Dec.159 (A•G, 1961); 

Kelly v. INS, 349 F.2d 473 (9 Cir. 1965), cert. denied, 282 'U.S. 932 (1965); Garth Gonzales 

v. INS, 344 F.2d 804 (9 Cir. 1965). The dicta as to Werk, etc., would seem to fly in the face 

of these holdings. 

err, 
Interim Decision # 2832 

effectively sets aside the conviction. We have found that this statute 

provides for a total expungement which eliminates the conviction as a 

basis for deportation. See Matter of Berker, Interim Decision 2511 

(BIA 1976); Matter of Zingis, 14 I&N Dec. 621 (BIA 1974); see also 

Matter of Andrade, 14 I&N Dec. 651 (BIA 1974). 

The federal first offender statute, on the other hand, provides that 

there is no conviction if the court defers proceedings without entering 

a judgment of guilt and later discharges the defendant and dismisses 

the proceedings against Mm after successful completion of probation. 

This statute, as well as each of the state statutes we have considered, 

specifies that such discharge and dismissal shall be without court 

adjudication of guilt and shall not be deemed a conviction. The Service, 

in fact, notes in its memorandum that the legislative history of the 

statute supports the conclusion that no conviction exists upon discharge and dismissal. 

Thus, it is clear that these two statutes are by no means procedurally 

equivalent to one another. They are comparable, however, in that they 

provide a means to ameliorate the stigma of conviction for a certain 

class of offenders to whom Congress sought to extend leniency. I 

believe that the Service's use of the term "equivalent" was intended to 

equate the effect rather than the legal function of the two statutes and 

to reflect its conclusion that an alien sentenced under either statute 

should not be subject to deportation. Inasmuch as the Service recognized that no conviction resulted under the first offender statute, and 

advocated that it be treated in the same manner as the Federal Youth 

Corrections Act, I have no doubt that it would approve of the conclusion reached in the majority opinion. 

I would note, however, my confusion with the dissent's question 

regarding the application of the Board's reasoning to cases involving 

21 U.S.C. 844(b)(1) in narcotics convictions or the Federal Youth Corrections Act in other convictions. The federal first offender statute, by 

its very language, is limited to narcotics offenses, so it can only be 

applied in such cases. Furthermore, as we have distinguished the 

procedure used in first offender statutes from that in the Federal 

Youth Corrections Act and its state counterparts, I do not see how it 

could logically be inferred that the majority's decision in this case 

affects our decisions regarding the Federal Youth Corrections Act in 

either narcotics or non-narcotics cases. See Matter of Zingis, supra; 

Matter of Nagy, 12 I&N Dec. 623 (BIA 1968). Moreover, if the majority 

had believed that such decisions were altered by its opinion in this 

case, the majority would have so stated. 

I also wish to note my disagreement with the conclusion in the 

dissent that there are significant differences between the Georgia 

statute and the other first offender statutes which this Board has 

558 
Interim Decision 112832 

examined. The difference claimed is that the Georgia statute specifies 

that the proceedings may be deferredi before an adjudication of guilt, 

whereas the others speak only of the nonentry of a judgment of guilt. It 

is also stated in the dissent that the entry of a formal judgment of guilt 

is different from an adjudication of guilt, with citation being made to 

Matter of 0—, 7 I&N Dec. 539, 542 (BIA 1957). 

I would first point out that 21 U.S.C. 244(b)(1), on which our rulings 

regarding the state first offender statutes rely, states that if a person is 

found guilty, after trial or upon a plea of guilty, the court may, without 

entering a judgment of guilt, defer proceedings and place him on 

probation and, upon violation of the conditions of probation, may enter 

an adjudication of guilt and proceed to sentencing. Furthermore, each 

of the state statutes also provides for deferment of proceedings following a plea or finding of guilty without a j udgment of guilt being entered 

by the court. Inasmuch as proceedings are deferred under each of the 

statutes and no judgment of guilt is entered by the judge, I am unable 

to determine what, if any, are distinguishing factors. 

In regard to the contention that a judgment of guilt differs from an 

adjudication of guilt, I maintain that these terms are synonymous. See 

Black's Law Dictionary, 63 (5th ed. 1979); Webster's New Collegiate 

Dictionary, 15 (1977). I believe that the dissent has confused the 

situation where the court, upon a guilty plea or jury verdict, finds the 

defendant guilty and enters a judgment of guilt but declines to impose 

a sentence, and that where the court, also following a plea or verdict, 

decides to defer proceedings and refrains from entering a judgment of 

guilt. These two circumstances were discussed in Matter of 0—, supra, 

where it was concluded that the former case resulted in a conviction 

while the latter did not. I would agree and cite the Federal Youth 

Corrections Act as an example of a case where judgment may be 

entered but imposition of sentence suspended, and the first offender 

statutes as a situation where no adjudication of guilt is made by the 

court. Under either set of circumstances, a guilty plea or finding of 

guilt by a jury may be present, but the subsequent act of the judge 

determines whether a conviction exists for immigration purposes. If 

proceedings are deferred, there is no conviction, but a conviction 

results if the court enters a judgment, regardless of whether sentence 

is actually imposed or either the imposition or execution of sentence is 

suspended. See Pino v. Landon, 349 U.S. 901(1955); Matter of Robinson, 

16 I&N Dec. 762 (BIA 1979); Matter of 0—, supra. 

It is also argued by the dissent that this case is distinguishable from 

our previous decisions in that the defendants there were adjudged to 

be guilty by the court and were sentenced to fine or imprisonment or 

both. This is true. However, in each case, the conviction was later set 

aside, placing the defendant back in the position of one whose guilt had 
Interim Decision #2832 

not yet been adjudicated. Imposition of the sentence was not merely 

suspended, as the dissent suggests, but the conviction, including the 

adjudication of guilt, was totally eradicated. See Matter of aneda, 16 

I&N Dec. 677 (MA. 1979); Matter of Sirhan,18 I&N Dee. 692 (BIA 1970); 

Matter of O'Sullivan, 10 I&N Dec. 320 (BIA 1963). The court then 

resentenced the defendant under the first offender statute and discharged him by dismissing the proceedings pursuant to the statute. I, 

therefore, remain convinced that such discharge and dismissal under 

each of the first offender statutes does not amount to a conviction, as is 

manifest from language of each statute, and believe that our decision 

correctly so states. 

can